Friday, October 6, 2017

NSA rules were secretly reversed in 2011 to allow surveillance of Americans without a warrant, greatly expanding government power without public debate or Congressional authority-Washington Post, 9/7/2013

“The
government says, ‘We’re not targeting U.S. persons,’ ” said Gregory T.
Nojeim, senior counsel at the Center for Democracy and Technology. “But
then they never say, ‘We turn around and deliberately search for
Americans’ records in what we took from the wire.’ That, to me, is not
so different from targeting Americans at the outset.”...

The
court decision allowed the NSA “to query the vast majority” of its
e-mail and phone call databases using the e-mail addresses and phone
numbers of Americans and legal residents without a warrant, according to
Bates’s opinion.

The queries must be “reasonably likely to
yield foreign intelligence information.” And the results are subject to
the NSA’s privacy rules.

But
in 2011, to more rapidly and effectively identify relevant foreign
intelligence communications, “we did ask the court” to lift the ban,ODNI general counsel Robert S. Litt
said in an interview.

“We wanted to be able to do it,” he said,
referringtothe searching of Americans’ communications without a
warrant.

Joel gave hypothetical examples of why the
authority was needed, such as when the NSA learns of a rapidly
developing terrorist plot and suspects that a U.S. person may be a
conspirator. Searching for communications to, from or about that person can help assess that person’s involvement
and whether he is in touch with terrorists who are surveillance
targets, he said. Officials would not say how many searches have been
conducted."...

Senior administration officials
disagree. “If we’re validly targeting foreigners and we happen to
collect communications of Americans, we don’t have to close our eyes to
that,” Litt said. “I’m not aware of other situations where once we have
lawfully collected information, we have to go back and get a warrant to
look at the information we’ve already collected.”

The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act.
Under that law, the target must be a foreigner “reasonably believed” to
be outside the United States, and the court must approve the targeting
procedures in an order good for one year.

That is why it is important to require a warrant before searching for
Americans’ data, Udall said. “Our founders laid out a roadmap where
Americans’ privacy rights are protected before their communications are
seized or searched--not after the fact,” he said in a statement to The
Post.

Another change approved by Bates allows the agency to keep
the e-mails of or concerning Americans for up to six years, with an
extension possible for foreign intelligence or counterintelligence
purposes. Because the retention period begins “from the expiration date”
of the one-year surveillance period, the court effectively added up to
one year of shelf life for the e-mails collected at the beginning of the
period.

Joel said that the change was intended to standardize
retention periods across the agencies and that the more generous
standard was “already in use” by another agency.